Reply to: "We must opt you out of the Conduct of Employment Agencies Regs 2003...

[Incognito]

Well if it makes you happy...

Alhough I hope that after several years arguing about the Regs and what they mean, I must have raised that point at least once before.

Well I don't know, but I'll give you your due, you have argued the regs. I'm pro Regs by the way, I think the PCG did the best they could in getting them implemented. I'm also a member.

[malvolio]

You're not meant to bicker in the professional forums, but I'm afraid I have to point out you go from this:



To this:



In the space of a fortnight. After my post laying out that argument. So again, it's courteous to pay people the respect if you're going to use their argument as your own.

Well if it makes you happy...

Alhough I hope that after several years arguing about the Regs and what they mean, I must have raised that point at least once before.

[Incognito]

How about if it's my original? Do I credit myself? OR if yuo want a reference, how about the Operations Director of a £400m a year agency; is that authoritative enough?

And I do actually know who BIS are, thanks.

You're not meant to bicker in the professional forums, but I'm afraid I have to point out you go from this:

This could be intresting...

If you're opted out then no, the agency are not obliged to pay you if they haven't been paid themselves. However, if you're opted in, they are. Your invoice is not part of the client's debts so any money arguments are between agency and client. The point is that 99% of us are opted in, intentionally or not, so if this goes to the wire it would good to test things in court....

To this:

Let's have a degree of realism, chaps, please....

Fourthly the definiton of "Introduction" is the problem. It may mean "when the client knows who you are" in the sense we understand it or it may mean "when the previously unidentified worker turns up on the Monday" as per the Office Angels model which the agencies prefer. Until it goes to court, we will never know and neither side can be rigid about it.

In the space of a fortnight. After my post laying out that argument. So again, it's courteous to pay people the respect if you're going to use their argument as your own.

[malvolio]

Which is what I've been saying for the last three or four days...

[cojak]

I made enquires as well and got the opposite answer to Cojak.

It seems it depends on who you deal with in that part of the BIS

I believe Incognito thought that I wasn't specific enough with my question and it allowed the BIS to wriggle out of it. So for the first time I'll place everything here.

Hello, I have discovered 2 companies stating in their websites that following discussions WITH YOU they will not work with contractors who insist on remaining within The Conduct of Employment Agencies and Employment Businesses Regulations 2003 (Regulation 32) ('Opting- In'). Is this true and is this legal? [Agency A & Agency B pdfs] Regards, cojak

BIS response:

Dear cojak
EMPLOYMENT AGENCIES ACT 1973
Thank you for your email about employment agencies indicating that they will only seek to find work
for contractors who have opted out of the Conduct of Employment Agencies or Employment Businesses Regulations 2003. Your email has been passed to me to respond to you and I apologise for the delay in responding to you.
I can inform you that the Employment Agency Standards (EAS) Inspectorate, based in the Department for Business, Innovation and Skills, is responsible for enforcing the provisions of the Employment Agencies Act 1973 and associated regulations. This legislation requires employment agencies and employment businesses to abide by specified minimum standards of conduct. Further details about the legislation can be obtained from our website,
Employment Agency Standards inspectorate | Policies | BIS
I can advise you that it is not illegal under the Employment Agencies Act 1973 or Conduct of Employment Agencies and Employment Businesses Regulations 2003 for an employment agency or employment business to insist that they will only seek work for work-seekers who will agree to opt out of the Conduct Regulations. This is a business decision that employment agencies or employment business might make without contravening the employment agency legislation.
I hope this has clarified the position.
Regards

XXXXXX
Head of Employment Agency Standards Department for Business, Innovation and Skills

[Wanderer]

Your'e not listening. It's nothing to do with the contract or the letter of the Agency Regulations or any other element of corporate law. There is nothing to force a company to deal with another comapny if they can't agree the terms of trade. You don't want to sign a piece of paper saying you are opting out then fine, I'll find someone who will.

No, I'm hearing what you say but I just don't agree with you. Section 32(13) of the Conduct Regulations seems pretty clear to me but if you want to brush this aside as being irrelevant and you don't accept the PCG guidance saying that it is illegal for agencies to act in this way then you are of course entitled to your opinion.

Also, consider this. The regualtions do little if anything for the genuine freelance contractor but mainly generate a lot of extra paperwork on both sides.

The REC say in their consultation that "checking candidates’ details is an essential part of the service provided by employment agencies" and their members would be expected to do this regardless of the regulations. I don't see that the regulations cause any extra paperwork here.

Most of us were arguing that they shouldn't ever have applied to us but should have been focused on the casual labourers and agency temps they were meant to prootect.

Many contractors think that the protections stating that an agency cannot refuse to pay the contractor in the event that they don't get paid and the limit on the restrictive covenants are very real benefits to a small business.

If the agencies are universally operating as though everyone has opted out, isn't that precisely what we were trying to acheive?

No, I don't believe that it was the PCG's intention to coerce people into opting out. My understanding is that they simply wanted contractors to be given a free choice to opt out if they wanted to. Unfortunately, the agencies have now hijacked the opt out and abused it to their own benefit as we can see from the discussions in this forum.

[SueEllen]

I believe cojak made enquiries about this and even started a thread about it. And yes, (AFAICR), agencies can make it conditional when offering roles.

I made enquires as well and got the opposite answer to Cojak.

It seems it depends on who you deal with in that part of the BIS

[malvolio]

It's normally good practice to reference your work when you use other peoples arguments.

How about if it's my original? Do I credit myself? OR if yuo want a reference, how about the Operations Director of a £400m a year agency; is that authoritative enough?

However, as you have some sway with the PCG can you ask them to:

-... write to the BIS (Vince Cable's department replacing BERR/DTI) and ask them to clarify at what stage of the process does Regulation 32 refer to when referring to the term 'introduction' is it the interview or first day on the job.

Do you really think they haven't done that already? Roughly two days after the final regulations were published? And that nothing was done as a result? And I do actually know who BIS are, thanks.

And I only have sway because I'm a member and the listen to their members. So you know the next step, don't you...

[Incognito]

Fourthly the definiton of "Introduction" is the problem. It may mean "when the client knows who you are" in the sense we understand it or it may mean "when the previously unidentified worker turns up on the Monday" as per the Office Angels model which the agencies prefer. Until it goes to court, we will never know and neither side can be rigid about it.

It's normally good practice to reference your work when you use other peoples arguments.

However, as you have some sway with the PCG can you ask them to:

-... write to the BIS (Vince Cable's department replacing BERR/DTI) and ask them to clarify at what stage of the process does Regulation 32 refer to when referring to the term 'introduction' is it the interview or first day on the job.

[Incognito]

As Wanderer quite rightly pointed out signing it into a contract can be used in an argument over intent if it ever came to a court fight, since UK judges have leeway to look at intent rather than the strict wording I'd rather not hand ammunition over to get shot with.
Plus of course if the court battle was over a contract breech like non payment, admitting that you'd signed the contract in the full knowledge that you had no intention of upholding a clause would be at best ill advised and could easily be called stupid if not fraudulent.

Not strictly true. The law can protect you in any agreement that has been entered into through the application of illegitimate pressure. The areas that concern us are the doctrine of economic duress and the tort of intimidation

Both address the issue where a party has relied upon illegitimate pressure which has caused another party to accede to its demands. A Court would pay particular attention to the negotiations that formed the basis of the contract and if you have clear evidence that the agency wasn't playing by the rules then your argument is strengthened.

[malvolio]

Do you have a reference to back this up or is it just
your opinion? Your statement appears to be at odds with the agency conduct regulations which appear to specifically prohibit this:

The Agency Conduct Regulations Section 32(13) states

Neither an agency nor an employment business may make the provision of work-finding services to a work-seeker which is a company conditional upon the work-seeker, and the person who is or would be supplied by the work-seeker to carry out the work, entering into and giving notice of an agreement as referred to in paragraph (9), to the agency or employment business.

.

Your'e not listening. It's nothing to do with the contract or the letter of the Agency Regulations or any other element of corporate law. There is nothing to force a company to deal with another comapny if they can't agree the terms of trade. You don't want to sign a piece of paper saying you are opting out then fine, I'll find someone who will. It's no different to not using people working through offshore limiteds or people without security clearance.

You may not like it but it's how the agencies address the issue. If you think it's wrong then sue them and we'll get clarity. Until then, thre is nothing to stop what you call abuse and what they call good business.

Also, consider this. The regualtions do little if anything for the genuine freelance contractor but mainly generate a lot of extra paperwork on both sides. Most of us were arguing that they shouldn't ever have applied to us but should have been focused on the casual labourers and agency temps they were meant to prootect. If the agencies are universally operating as though everyone has opted out, isn't that precisely what we were trying to acheive?

[BolshieBastard]

Sorry Mal, we agree on a fair few things, but since the PCG was directly involved and part of the consultation process that resulted in this pestilent Opt Out as an organisation they have to accept substantial responsibility for it. As we all know it's used to batter us contractors round the head to the direct benefit of the agencies and when it was inserted into the regs I recall the PCG touting it as a major success.

Correct. They, pcg, were absolutely cock a hoop about this opt out, believing they'd delivered yet another victory in showing contractors as, ahem, true businesses.

They ****ed up royally though (just like they have again over IR35 mark II) and rightly need their arses kicking.

As Wanderer quite rightly pointed out signing it into a contract can be used in an argument over intent if it ever came to a court fight, since UK judges have leeway to look at intent rather than the strict wording I'd rather not hand ammunition over to get shot with.
Plus of course if the court battle was over a contract breech like non payment, admitting that you'd signed the contract in the full knowledge that you had no intention of upholding a clause would be at best ill advised and could easily be called stupid if not fraudulent.

I'd agree with this.

[BolshieBastard]

Do you have a reference to back this up or is it just your opinion? Your statement appears to be at odds with the agency conduct regulations which appear to specifically prohibit this:

The Agency Conduct Regulations Section 32(13) states

Neither an agency nor an employment business may make the provision of work-finding services to a work-seeker which is a company conditional upon the work-seeker, and the person who is or would be supplied by the work-seeker to carry out the work, entering into and giving notice of an agreement as referred to in paragraph (9), to the agency or employment business.



And what does the PCG have to say on the subject of the abuse of the opt out?




Doing business in such a way that you sign contracts on the basis that it's unenforceable under law is a very dangerous position to take. It could be argued in court that the intent of both parties was that the regulations would not apply and that could make things very difficult for the contractor if they were to try and use that defence.

I believe cojak made enquiries about this and even started a thread about it. And yes, (AFAICR), agencies can make it conditional when offering roles.

[TykeMerc]

Sorry Mal, we agree on a fair few things, but since the PCG was directly involved and part of the consultation process that resulted in this pestilent Opt Out as an organisation they have to accept substantial responsibility for it. As we all know it's used to batter us contractors round the head to the direct benefit of the agencies and when it was inserted into the regs I recall the PCG touting it as a major success.

As Wanderer quite rightly pointed out signing it into a contract can be used in an argument over intent if it ever came to a court fight, since UK judges have leeway to look at intent rather than the strict wording I'd rather not hand ammunition over to get shot with.
Plus of course if the court battle was over a contract breech like non payment, admitting that you'd signed the contract in the full knowledge that you had no intention of upholding a clause would be at best ill advised and could easily be called stupid if not fraudulent.

[Wanderer]

Thirdly it cannot be made a condition of the contract, although obviously the agency can choose who they want to do business with - as can you and any other company - and if they only want to deal with opted out people that's their right.

Do you have a reference to back this up or is it just your opinion? Your statement appears to be at odds with the agency conduct regulations which appear to specifically prohibit this:

The Agency Conduct Regulations Section 32(13) states

Neither an agency nor an employment business may make the provision of work-finding services to a work-seeker which is a company conditional upon the work-seeker, and the person who is or would be supplied by the work-seeker to carry out the work, entering into and giving notice of an agreement as referred to in paragraph (9), to the agency or employment business.

But stop blanming the PCG.

And what does the PCG have to say on the subject of the abuse of the opt out?

However signing a clause in the contract saying you've opted out is totally meaningless

Doing business in such a way that you sign contracts on the basis that it's unenforceable under law is a very dangerous position to take. It could be argued in court that the intent of both parties was that the regulations would not apply and that could make things very difficult for the contractor if they were to try and use that defence.